Anderson v. Wayne Circuit Judge

230 N.W. 923, 251 Mich. 104, 1930 Mich. LEXIS 551

Opinion

Clark, J.

Plaintiff Anderson, in the common pleas court of Detroit, recovered judgment for $100 and costs against Carl Hoffrichter and Mills Baking Company, a corporation, defendants. Defendants appealed, but their notice of appeal under Circuit Court Rule No. 11, as amended, was given four days before the return on appeal was filed in the office of the county clerk. In the circuit court, on the ground that the notice of appeal was insufficient, plaintiff moved to dismiss. Denial of the motion is reviewed here on mandamus.

The case is ruled by Livingston v. Saginaw Circuit Judge, 247 Mich. 578, where a notice given prematurely, as here, was held not to be a substantial compliance with the rule. It is urged that the cited case may be distinguished because it involved notice of retainer instead of notice of appeal. The decision is not upon form or substance ,of notice, but that notice was premature, and therefore ineffectual under the rule. The motion should have been granted, and to that end the writ, if necessary, will issue. Costs to plaintiff.

Wiest, C. J., and Butzel, McDonald, Potter, Sharpe, North, and Fead, JJ., concurred.